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Court Distinguishes Between Petit Larceny and Felony Petit Larceny

The state charged appellant with armed robbery and resisting a merchant. The jury found her guilty of the lesser included offense of petit theft and resisting a merchant. The trial court adjudicated her guilty of the two misdemeanors. At sentencing, however, the court reclassified her conviction pursuant to section 812.014(2)(c), based on her prior theft convictions. A West Palm Beach Petit Larceny Lawyer said that, appellant stipulated at pretrial that she had nine prior misdemeanor convictions. A New York Criminal Lawyer said the information, however, did not make reference to the prior convictions, nor did it charge her with a felony petit theft. On that ground, appellant contends that the trial court erred when it reclassified her petit theft conviction to felony petit theft.

The issue in this case is whether the Court erred in reclassifying appellant’s conviction of petit theft to felony petit theft (petit larceny).

Ina 1991 case, the court stated: A charging document must provide adequate notice of the alleged essential facts the defendant must defend against. In recognition of this concern, Florida Rule of Criminal Procedure 3.140(b) provides that an “indictment or information upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” The Court then referred to its prior opinion in a 1978 case: the Justice concluded for the Court that the felony petit larceny statute “creates a substantive offense and is thus distinguishable from section 775.084, the habitual criminal offender statute.” The felony DUI statute is indistinguishable in this regard. The Court concludes that the existence of three or more prior DUI convictions is an essential fact constituting the substantive offense of felony DUI. Having established that the existence of prior DUI convictions is an essential element of felony DUI, it necessarily follows that the requisite notice of prior DUI convictions must be given in the charging document.

A Bronx Criminal Lawyer said the state cites the 1978 case in support of its argument that because it charged appellant with grand theft and the jury convicted her of a lesser included offense of petit theft, the charging document need not allege the prior thefts before an accused may be found guilty of felony petit theft. In the said case, the court said:

We also agree that when felony petit theft is the only felony with which an accused is charged, the charging document must make clear that felony petit theft is being charged in order to invoke the jurisdiction of the circuit court. We do not agree, however, that prior thefts must be alleged in the charging document and proved in all instances before an accused may be found guilty of felony petit theft. Rather, we agree with our sister court’s statement that if such a procedure were required, the state would have to charge the crime of felony petit theft, in the alternative, in every case that a jury could find the defendant guilty of petit theft as a lesser included offense of the crime actually charged.

The Court finds the reasoning in the 1978 case persuasive, but note that said case preceded the Supreme Court’s opinion and its discussion therein of the 1991 case. Based on the 1991 case, the Court concludes that the state must allege the elements of the felony petit larceny statute in its charging document if it intends to proceed under section 812.014(2)(c).

Accordingly, the Court held that the trial court erred when it reclassified appellant’s conviction to felony petit theft. The Court reversed appellant’s felony petit theft conviction and remands this cause to the trial court with instructions to enter a judgment of conviction for petit theft and to sentence appellant consistent therewith.

If you have been charged of the crime of petit larceny, grand larceny, drug possession or sex crimes, seek the legal advice of a West Palm Beach Petit Larceny Attorney and West Palm Beach Grand Larceny Attorney in order to protect your constitutional rights to due process while trying your case. Our West Palm Beach Criminal Attorney at Stephen Bilkis and Associates can competently handle your case. Call us for free consultation.

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